Faggioni v. Weiss

• Decision Date: 20 November 1923
• Docket Number: No. 107.,107.
• Citation: 122 A. 840
• Parties: FAGGIONI et al. v. WEISS.
• Court: New Jersey Supreme Court

122 A. 840

FAGGIONI et al.

v. WEISS.

No. 107.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1923.

(Syllabus by the Court.)

Kalisch and Black, JJ., dissenting.

Appeal from Supreme Court.

Action by Alfred Faggioni, by Louis Faggioni, his next friend, and Louis Faggioni, personally, against Alexander Weiss. From a judgment for plaintiffs, defendant appeals. Reversed for venire de novo.

James D. Carpenter, Jr., of Jersey City, for appellant.

Thomas Brown, of Perth Amboy, for respondents.

PARKER, J. The infant plaintiff, a boy 12 years old, was severely injured while riding in the appellant's automobile, by a collision between it and another automobile operated by one Schenk, who was joined as a defendant in this suit for damages; the father of the infant plaintiff also suing per quod. The trial court left it to the jury to say whether either defendant was, or both were, liable, and the jury absolved Schenk and found a verdict against the present appellant.

The grounds argued for a reversal are that the trial court denied motions to nonsuit, and to direct a verdict for defendant Weiss, and erred in the charge to the jury. We find it unnecessary to deal with the motions to nonsuit and direct, or with the claim for respondents that argument on these points is barred by consideration of them on a rule to show cause in the court below, as we reach the conclusion that the judgment must be reversed because of error in the charge.

The principal storm center of the case lay in the question whether plaintiff was in the appellant's car by invitation or was a mere licensee. It was argued at the trial, and is argued here, that even if he was invited, he assumed the risks incident to riding in that car. But it is elementary that the owner and operator of a private conveyance who invites another to ride therein with him is thereby laid under the duty of reasonable care toward his guest; and there consequently can be no assumption by such guest of the specific risk that reasonable care will not be used. Rodenburg v. Clinton Auto. Co., 84 N. J. Law, 545, 87 Atl. 71, affirmed 85 N. J. Law, 729. 91 Atl. 1070; Mackenzie v. Oakley, 94 N. J. Law, 66, 108 Atl. 771. If. then, the young plaintiff was invited, in the legal sense of the word, to ride in defendant's car, the trial judge properly charged that defendant owed him the duty of reasonable care in transporting him, so long as that status continued.

There was, however, another theory of the case open for consideration by the jury, viz. that the infant plaintiff was at best a mere licensee in the car, and on that theory it was argued that defendant owed him no duty except to abstain from acts willfully injurious. Such was the situation, and such the rule enunciated in the recent Supreme Court case of Lutvin v. Dopkus, 94 N. J. Law, 64, 108 Atl. 862, where plaintiffs solicited a ride and defendant simply acceded to their request. In the case at bar, however, though the learned trial judge instructed the jury that under such circumstances no duty of care was owing to an adult, he laid down a different rule with respect to an infant of tender years, evidently meaning the plaintiff. His instruction on this point was as follows:

"The law, when it comes down to persons of tender years, those who are said to be not sui juris, may be in some sort of uncertain state in this state, but for the purposes of this case I am going to lay down for your guidance this rule: That where a boy of sufficiently mature years to appreciate what he is doing, and the risks he is running, gets in a car by his own invitation, and without the invitation of the person who carries him, he, like an adult, assumes the risk of whatever happens, short of willful or intentional wrongful act on the part of the driver; but where a boy between the ages of 7 and 14 years gets in a vehicle, even by his own request, and without the formal word of invitation from the driver, there may be an age at which a jury would say that he was not of sufficient years of discretion to appreciate the danger of getting in a vehicle of such character and riding, and that as to which there is an obligation to use reasonable care for his safety, if the driver takes such a person in under such circumstances."

This instruction we deem to be erroneous. "Whatever may be the course of decision elsewhere, our own cases have uniformly applied the rule of nonliability except for willful Injury to licensees and trespassers, adults and infants alike.

In Vanderbeck v. Hendry, 34 N. J. Law, 467, in the Supreme Court, plaintiff was 10 years old, and the court conceded to him the, status of a licensee; but it was held that the defendants owed him no duty of care, and (at page 473 of 34 N. J. Law) the court said:

"The age of the plaintiff could have no bearing, except on the question of contributory negligence; and if the defendants had been guilty of any neglect of duty towards him, his tender years might have shielded him from any imputation of carelessness."

In Turess v. N. Y. S. & W. E. Co., 61 N. J. Law, 314, 40 Atl. 614, a turntable case, the same court followed Vanderbeck v. Hendry, and said, at page 320 of 61 N. J. Law, at page 615 of 40 Atl.:

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